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POENA

POENA The original sense of this word, which is derived from
the Greek ωροτϝω (Curtius, Gr.
Etym. No. 373), seems to have been composition paid by a delinquent
to the party injured by him, or to his kinsmen, in order to escape vengeance
(Dig. 50, 16, 131 pr., “poena est noxae vindicta;”
cf. the expressions “poenas solvere, pendere” ). (Rubino,
Untersuchungen über röm. Verfassung, p.
460; Ihering, Geist. d. R. R. 1.126.) When crimes came to be
visited with punishment by the state, the word poena meant a penalty or punishment threatened by the law on
account of offences, whether such penalty was exacted at the suit of the
injured party, as in the case of theft, or was a consequence of a judicium
publicum.

The conception of poena differs from that of multa, as Ulpian exclaims in a well-known passage of the Digest
(Dig. 50, 16, 131.1). Multa or
mulcta was a pecuniary penalty (
“cujus animadversio hodie pecuniaria est” ), though by the
law of the Twelve Tables it had been pecuaria or a certain number of oxen
and sheep. (Plin. Nat. 18.12; Festus, s.
vv. Multam, Peculatus.) It was one of the modes
of punishment by which the higher magistrates enforced their supreme
executive authority, but the right of imposing a multa on offenders was
extended to inferior magistrates, and in Ulpian's time belonged to every
person who was invested with judicial power in civil or administrative
matters, such as municipal magistrates and praesides provinciarum (
“item multam is dicere potest, cui judicatio data est” ). A
multa was imposed according to the discretion of the magistrate, and its
amount was determined by the pleasure of him who imposed it, unless a
maximum amount was fixed by law. On the other hand, a poena was only
inflicted when it was imposed by some lex or some other legal authority
(quoaliojure). (Cf. Paulus in Dig. 50, 16, 244 (Labeo): “Si qua poena est, multa est; si
qua multa est, poena est.” (Paulus): “Utrumque eorum falsum
est; namque harum rerum dissimilitudo ex hoc quoque apparet, [p. 2.441]quod de poena provocatio non est. Ex hoc
quoque earum rerum dissimilitudo apparere poterit, quia poenae certae
singulorum peccatorum sunt, multae contra, quia ejus judicis potestas
est, quantum dicat, nisi cum lege est constitutum quantum dicat.”
) A poena was not necessarily pecuniary, but might affect a person's caput
and existimatio. Cicero enumerates the following kinds of poenae, viz.
damnum, vincula, verbera, talio, ignominia, exilium,
mors, and servitus (Cic. de Leg.; Aug. C. D. 21.1. 2;
de Or. 1.43, 194; de Off. 3.5, 23;
pro Caec. 34, 100). A poena might be inflicted by any one
whose function it was to take cognisance of crimes. When no poena was
imposed, then a multa might be the punishment.